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16 October 2005
Can't recall? Can you ever get in trouble for 'failing to recall' during a trial? I mean, if you could remember, but just didn't want to say, you'd be committing perjury, but how could they ever prove beyond a reasonable doubt that you *were* lying?
Like everything in life, it all depends on who you are. You and I - yes, you can get in serious trouble and it will be assumed that you are lying unless you can prove otherwise. The Rich and Powerful - Not so much.
I would not be at all surprised that "I can't recall" is one of the most common answers given in court, especially to questions that never came up during the investigation.
I don't think so. The judge would have to know that you're lying to either nail you with perjury or contempt, and being boxed in like that is rare. When you've got proof of something they know or knew, the thing to do is to show them under cross and make them admit that they said something -- and even then you're asking them "do you remember saying this?" but by that point, memory isn't the issue, unless you're establishing unreliability.
I have heard of a judge whacking someone for simply not remembering *anything* about events that he or she should know intimately -- because at that point the judge feels certain that the person is committing perjury, but even then, it can't be proven -- but the person's testimony, if otherwise valuable, is shot.
Lack of memory can even be credibility-building. One of my favourite cops would often tell me (the fed prosecutor) in court that he couldn't remember stuff that would have been useful for the case. I mean, six months ago, one car of a hundred on any given day, natch he can't remember everything. So he says so, and it makes what he can testify to remembering even weightier.